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New York Penal Law 130.45 Not a “Prior Sex Offense” Under the Categorical Approach

Today the Second Circuit applied the categorical approach and vacated a life sentence. In United States v. Kroll, the Circuit held that under the categorical approach, the defendant’s 1993 conviction under New York Penal Law 130.45 did not constitute a “prior sex offense” as defined by 18 U.S.C. 3559(e)(1), and thus did not trigger a mandatory life sentence, because the state statue sweeps more broadly than its federal equivalent.

For a prior state conviction to count as a “prior sex offense,” it must “‘consist[] of conduct that would be a Federal sex offense’ if there were a basis for Federal jurisdiction.'” Opinion at 10. The Circuit held that a district court must employ the categorical approach when determining whether the state statute consists of conduct that would be a Federal sex offense. Under the categorical approach, courts “ask[] whether the least of conduct made criminal by the state statute falls within the scope of activity that the federal statute penalizes.” Opinion at 12 (quoting Stuckey v. United States, 878 F.3d 62, 67 (2d Cir. 2017)). “‘If the state statute sweeps more broadly’ than the federal statute — ‘i.e., it punishes activity that the federal statute does not encompass — then the state crime cannot count as a predicate [offense].'” Opinion at 12-13 (quoting Stuckey).

Here, the state statute of conviction, New York Penal Law 130.45 (1993), proscribed “deviate sexual intercourse with another person less than fourteen years old.” The parties and the Court agreed that the most comparable Federal statute was 18 U.S.C. 2241(c), which proscribes “knowingly engag[ing] in a sexual act with another person who has not yet attained the age of 12 years.” Thus, because the state statute criminalizes behavior with 12 and 13 year olds that is not criminalized by the federal statute, Kroll’s prior could not count as a “prior sex offense.” This is so even though Kroll admitted to conduct with an eleven year old – conduct that was proscribed by the Federal statute.